S1: This ad free podcast is part of your Slate Plus membership.
S2: The idea that the president who is the subject of this impeachment proceedings can dictate his terms will be very much like the defendant in a criminal case telling the prosecution. Here’s how you run things and here are the rules. Otherwise I won’t show up.
S3: The text is so very clear here that if you take two people who do exactly the same thing one of them is a man one of them’s a woman and you fire one of them and not the other. That’s sex discrimination.
S4: Hi and welcome back to amicable. This is Slate’s podcast about the law and the rule of law and the courts and the Supreme Court. I’m Dahlia Lithwick and I cover those things for Slate and in the event you had not yet noticed there’s been something of a run on law and lawyering this week as the Supreme Court ushered in what I think may be the most important term in decades in as the White House. By way of a letter to Democrats in the House of Representatives has simply refused the authority of Congress to investigate impeachable offenses. In so doing they may well have brought us to the precipice of a constitutional crisis. So I hope you have your pocket lawyer nearby.
S5: There is a lot to talk about later on in this show. We’re going to take you inside the Supreme Court for arguments and the biggest LGBT case in years. A challenge to federal laws that protect employees from dismissal for sexual orientation or transgender status. We’re going to talk to Pam Karlan who argued monster monster case on Tuesday at the court. But first we want to talk about impeachment. This past week has marked a turning point in the Donald Trump presidency. It may not quite have registered in the hurricane of events including Donald Trump abandoning Kurdish allies the arrest of two clients of Rudy Giuliani as they attempted to flee the country with one way tickets. But another benchmark was passed this week when White House counsel sent a letter to the House Democrats leading the impeachment investigation in which he more or less declared that the entire enterprise is invalid. A kangaroo court and just giving notice that the White House would not cooperate in any way with the impeachment inquiry that was begun in the house. This means in effect that what scholars like to call a quote constitutional crisis may now be underway. Professor Noah Feldman said as much in the New York Times the other day Charles Freed he was solicitor general under Ronald Reagan said the very same thing on television. So did Hillary Clinton. If unlike even Richard Nixon this process has now morphed from a fight with Congress over particular subpoenas or witnesses into a blanket claim of immunity from the entire impeachment process. I think we are really in uncharted waters and I have questions I have a lot of questions and listeners have questions and I know this because you send them to me with lots of exclamation marks and I’m grateful for them. I have to tell you quite candidly I am now staggering around in my briefcase. I have Charles Black his book on impeachment I have Frank Bowman’s book on impeachment I have Larry Tribe and Josh mattes their book on impeachment. I can barely walk anymore. And so when I said at the top I hope you have your pocket lawyer with you. Well thankfully we have the pocket lawyer of all pocket lawyers the behemoth constitutional law guru Larry Tribe is here to help us understand what’s happening and what next. He teaches constitutional law at Harvard. He’s co-author most recently of a book called to end a presidency the power of impeachment with Joshua mance. We actually had him on the show when the book came out but we have come a long long way since then. And I think it’s fair to say in many ways Larry Tribe wrote the book on all of this stuff.
S6: So presser tribe Welcome back to the podcast. Thanks Diez. Good to be with you.
S7: And so if it’s OK can we just start with my nuts and bolts way how questions and then we’ll build up to existential stuff which is coming it is palpably insane correct that the White House is simply telling Democrats this is how you run your impeachment you have to have a vote first that is on its face without merit. Is that fair.
S8: Well there’s no basis at all for the position taken by the White House. The idea that that the president who is the subject of this impeachment proceeding can dictate its terms would be very much like you know a defendant in a criminal case telling the prosecution here’s how you have to run things and is here the rules and otherwise I won’t I won’t show up. Well that’s all very nice. But the system just doesn’t work that way and it couldn’t work that way.
S7: And am I also right Larry that at least in Watergate there were efforts to a common. So for instance Nixon would say I’m not turning over the tapes but at no juncture was there a blanket effort to stymie the entire machinery of impeachment is that fair and in fact never before in our history has the target of an impeachment inquiry said no thanks I’m simply not going to participate because I don’t like the way you’re running it.
S8: I mean that’s just no way to run a railroad or a country and we would go right off the cliff if if the system of checks and balances really operated with the executive branch having the last word on checking itself. It just can’t possibly work that way. And it’s not going to work that way. The president even though he has really gotten away with a lot so far is just not going to get away with this.
S7: So there’s no formal rule book that says the House will launch an impeachment inquiry doing X Y Z. The claim made in White House counsel’s letter that the formal impeachment inquiry doesn’t begin until the entire House of votes is also a very fanciful claim that it’s certainly the case that that has happened. It’s also the case that impeachments have have begun without that happening. So there’s no legal force to it is political choice. If if Nancy Pelosi wants the entire House to vote but it is not a legal marker. Correct.
S8: Absolutely correct. There’s nothing in the Constitution or in the rules of the house that dictate that the House as a whole has to proclaim that we are now engaged in an impeachment inquiry the reason that it’s happened in some instances is that until fairly recently the individual chairs of various investigatory committees didn’t have the power to issue subpoenas unless there was a House resolution authorizing it. But now the standing rules of the House allowed Jerry Nadler or Adam Schiff or larger Cummings or any of the other relevant chairs to issue subpoenas on behalf of their own committees. So there’s simply nothing in the rules of the house that dictate that the sequence has to be the way the White House counsel says he wants it to be and as you pointed out there have been cases where individuals have been impeached and removed by the Congress although it happens to be cases of judges rather than presidents none of whom have ever been removed but some judges have been impeached by the House convicted and removed by the Senate without ever having a vote of the entire house initiating the impeachment inquiry. So clearly if Nancy Pelosi were to cave to this demand there would be another one that they would make up. They’re simply giving they’re pulling things out of thin air in order to say well you better do it this way. But this it would set a terrible precedent for the House to allow the president and his counsel to dictate the sequence of internal activity that has to happen in the house in order for impeachment to occur an impeachment of course would simply trigger a trial in the Senate which is where the president would get all of the rights that he says he wants to have in the house.
S9: The president’s suggestion that he should have a right to confront witnesses and call his own witnesses and treat what’s going on in the House of Representatives as a as a kind of trial that that’s sort of paradoxical because clearly if that’s what he wanted I’m sure Nancy Pelosi would oblige him and and dispense with the Senate and just try him in the house. But of course that’s not what he wants.
S10: And this is something I’ve been struggling with just doctrinally all summer and then it really was made manifest for the first time it wasn’t theoretical this week in Judge Beryl Howell’s court in a dispute about whether grand jury material that was involved in the Mueller investigation could be declassified. And suddenly this question that was theoretical was real and that was is there some magical thing that happens when you are in a formal impeachment inquiry. That means that courts are more likely to side against the White House. And I mentioned it only because Judge Howell it sounded like she was saying that your posture would be much stronger here if you had just voted the whole house had just voted to impeach. Am I correct that there is some doctrinal force in that vote.
S8: I don’t really judge how well did say essentially that the counsel for the president would be deprived of a talking point if the House were to have that kind of procedure but she expressed absolute incredulity at the thought that that has to have and in fact I think at one point she said Wow that’s quite an extreme position. In response to the position being taken by the by the government which was not only is that you need an entire vote of the House to initiate the inquiry but even if you had such a vote they basically said the precedents of the Watergate era should be re-examined and that really the Watergate grand jury material should never have been turned over because rule six E which is the rule of the Federal Rules of Criminal Procedure which unlocked the door to secret grand jury material they claim does not apply to an impeachment proceeding it applies only to a technically judicial proceeding. Well that’s a position that would have meant we would never have seen the Nixon tapes that would really rerun history in a dramatic way. And that really underscores the extremity of the position that the administration is taking before the Southern District of New York. In the case of brought by Cy Vance the Manhattan district attorney they took the position which was roundly and quite brilliantly repudiated by Judge Ferraro that a sitting president simply can’t be investigated or prosecuted nor can any of his associates or allies for any criminal activity as long as he’s president of the United States. I mean that really would put the president totally above the law and these extreme positions the position taken in the Southern District of New York. Position taken before Drudge how the District of Columbia the position taken in the White House letter to which you referred at the beginning. These are the most extreme positions ever taken by a chief executive of the United States.
S7: And I think that they’re going to be as unsuccessful as they are extreme and while we’re on this I have a question that I want to ask you’ve just answered the first part which is these questions about immunity from even investigation you know they’re just that the capacious breath of the claim that is being made in the courts that you can’t even look at me you can’t look at my family it’s not just that you can’t convict me or indict me but you can’t even investigate. And I’m so glad you raised this issue of this goes way beyond claims that executives have made before. But it’s related to the second part of that question that I have which is that the claims that they’re making about executive privilege which are equally for me brain searing I mean the claims that you know anybody who ever worked for Trump ever people who worked on the campaign are now claiming privilege or the White House is claiming privilege for them. People who have left the White House people who knew people who knew people who talked to a guy.
S11: Can you also unpack the executive privilege claims that are being advanced the whole idea of executive privilege is something that the U.S. Supreme Court quite reasonably implied from the structure of the Constitution back in the Nixon tapes case it said that there’s nothing written in the Constitution that protects confidential advice the president gets from being routinely exposed. But in order to make the constitution work we have to assume that there is some kind of privilege a little bit like the lawyer client privilege for confidential advice but the president in this instance is now extending that idea not only to confidential advice given to him but to notes of conversations between people who never had anything to do with him and he is transforming a limited idea of shielding certain communications subject to exceptions into some sweeping umbrella of complete immunity from the law. And that’s just a crazy position and if and when even a conservative Supreme Court addresses it they’re going to cut it back dramatically.
S7: Am I correct that the posture in that White House counsel letter that essentially says we are immune from impeachment because this isn’t I think the word fair was used seven times in that it sounds like my kids right. It’s not fair. And then the posture taken in court Larry is we’re not subject to legal processes because there is a congressional check called impeachment. So if I’m correct about this they are saying they’re saying at the same time you can’t do this because that and also you can’t do that because it’s very much like the magic trick of you can’t find the pea under the shell because it keeps moving.
S12: They say when you go after the guy through the criminal process. No no no you can’t do that. You have to go after us through impeachment. And when we go after him through impeachment they say no no no that’s not available either. Which adds up to the proposition that I’m the emperor. I am the state just as when President Trump apparently does think of himself that way he not only touts his own brilliance and his genius and his wisdom but he talks about when he took over America. That’s the way he describes having become president. That’s just not the way our system is set up. That’s not the way any constitutional democracy could possibly be set up. We are not ruled by Donald J.
S8: Trump. This is a self-governing nation. That’s the whole idea.
S10: This takes me to what you said up at the top. You said it can’t be the case that Congress is perfectly stymied it cannot function that way. And that leads me to and we’ve had quite anxious listener mail this week saying what does Congress do what teeth can Congress put into a system where essentially the nihilist argument has been made. I spit on your system. Your system does not bind me. And I guess we should start with the crazy talk about inherent contempt powers. I mean is it in fact the case that things that have not been done since the Teapot Dome scandal we’re going to start jailing Hope Hicks we’re going to put Corey Lewandowski in the stocks we’re going to find people tens of those that the power is at the teeth that Congress has.
S8: Well that a lot of people I think would have a lovely time Maginnis those perp walks but I think that’s not a realistic option. It’s legal. It’s a power that Congress has. It theoretically has the power of the Supreme Court has without dissent affirmed it. The power to actually conduct a little trial of people who refuse to comply with subpoenas and orders to show up and produce documents. And if they don’t go along they can be locked in the basement of the capital or they can be subjected to escalating fines. But I think that would be a terrible distraction. Imagine in the modern world how that would look and it would really make the banana republic that the president has created looked like sort of a banana soup republic. It’s just not a good idea. Not that we can’t do it. And maybe hanging it over the White House as a kind of sword of Damocles is rhetorically a good idea. But it’s not something I favor. I think it would be a distraction.
S11: I think one has to go to court. Want us to expedite proceedings in court. And if courts move too slowly just with what they sometimes call all deliberate speed then don’t wait. As I’ve argued in various forums including an op ed in USA Today I’ve argued that there’s no reason why impeachment can’t proceed right now on the basis of what we know while we continue to investigate. It would be justifiable for the House of Representatives to impeach the president for various abuses of power particularly with respect to the way he withheld military assistance from a vulnerable Ukraine in order to benefit his own re-election campaign by getting manufactured dirt on Joe Biden.
S12: And in order to achieve other things I mean that’s an abuse of power. He could be impeached for that tomorrow. He could also be impeached for this kind of stonewalling I spit on your Congress tomorrow. There’s no reason why these impeachment can’t proceed. While Congress still digs around and tries to get to the bottom of certain details which we needn’t know in order to say that he has abused his power in an impeachable way but which the nation has a right to know.
S8: I mean the way in which there is a kind of a private state department run by Giuliani and some thugs who were recently arrested and how this all has going on under our noses for the last several months I mean all of that needs to be unearthed but he can be impeached in the meantime and there’s no rule that says you can only impeach President once the stone wall that he had relied on in the House is beginning in the Senate is beginning to crack. It’s not at all clear that the Senate will back him up. A lot of senators are so dismayed by the way he is throwing our allies the Kurds under the bus and virtually inviting ethnic cleansing by Ertegun a lot of those people are beginning I think to reconsider whether they want to go down with this particular version of the Titanic.
S10: So that’s incredibly controversial what you just said I actually said the same thing this past week. I think in print Don’t turn this into two years of waiting for Mueller if Donald Trump confessed to Lester Holt that he fired Jim Comey to get rid of the Russia probe. We don’t need two more years of evidence and essentially we’ve got as I understand it the three articles of impeachment against Nixon you know abuse of power obstruction ignoring subpoenas. That’s why we’ve got that in our hands and trying to run after emoluments which we’ve been doing for three years with very middling success is not the way to go.
S7: I think the people who resist the analysis you and I just put forward tend to say you’re leaving too much on the table.
S11: You cannot leave on the table all the other bad conduct I don’t want to leave it on the table that as I’m saying impeach the guy and keep pursuing him for all of these other things. I don’t think that having voted in Article of Impeachment you then fold up your briefcase and walk away. He should not be allowed to get away with any of these horrible things he’s done but that doesn’t mean that because he’s done so many abusive things that he can basically tie us up in knots and stay in power and take extremely dangerous steps that undermine our national security and erode our alliances. Just because he’s done so much that’s wrong that we can never quite catch up. It’s like saying not just I could shoot someone first avenue and get away with it it’s that every time you go after me for shooting someone on Fifth Avenue I’ll shoot somebody else and you’ll never you’ll never catch up. I think that the way to put a stop to that is to impeach him now not wait. But at the same time don’t leave anything on the table continue investigating.
S9: There’s no rule that says I mean just as the House of Representatives can pass various measures dealing with gun safety and then climate notwithstanding the fact that those measures don’t get anywhere in the Senate so the House can vote articles of impeachment and continue to investigate and continue to identify more abuses and put pressure on the US Senate to confront this lawless renegade president. And if they don’t do it they should pay a price at the election of 2020.
S10: So you mentioned that the correct avenue to the extent that the House is going to continue to try to obtain documents and testimony that the correct path is the courts. And you also said and anything this is correct that’s going to have to happen on an expedited basis. We saw a little bit of that this week when the Second Circuit in litigation you mentioned the case about Donald Trump’s tax returns and the Second Circuit more or less said You’ve got 12 seconds. MAN It’s the fastest briefing schedule I’ve ever seen. So I think one thing we’re going to see presumably is some of the courts speeding up so that this can’t be slow walked until after the election. But it does raise the question that I think I’m asked. I suspect you’re asked Larry more than anything which is what is the role for the Supreme Court in all this. Are these issues going to end up in the court’s lap. We know that the court is not going to get involve on the merits in debates about the propriety of impeachment that goes back to Nixon versus United States. This was not Richard Nixon it was a federal judge Walter Nixon who claimed in the courts that his impeachment trial had not given him due process. The Court resoundingly says we’re not getting involved in your impeachment disputes but there is a second subset of questions which has to do with the emoluments staff it has to do with the tax returns it has to do with declassifying Mueller material that kind of thing could go to the Supreme Court. That’s not in the bucket of things the Supreme Court won’t hear per Walter Nixon.
S11: Well there are two different issues today. The court is not going to review the merits of any impeachment article or the way in which either the House goes about impeaching the president or the Senate goes about trying him. The court will stay out of that as it did and made clear it was going to do in the case of Judge Walter Nixon the case that you’ve pointed out. But that doesn’t mean the court has to stay out of the ancillary fights over the evidence that has to be produced so that if for example the search for the tax returns in the case brought by Cy Vance and then waylaid in the Southern District and flanking maneuver by the White House that is now on an accelerated briefing and oral argument schedule in the Second Circuit that one could get to the Supreme Court or any of a number of other cases in which the administration’s far out legally vacuous indefensible position that you can’t touch us we can’t be required to turn over anything because this impeachment whole thing is a kangaroo court. Any of those claims could well get to the Supreme Court relatively quickly. The Nixon tapes case didn’t take all that long. But we shouldn’t leave out of the calculus the fact that there are some people that the president is trying to gag and silence who are not within his control and who might voluntarily testify. I mean some of the people involved in Ukraine gate and in the dissolution of the State Department who were involved in on the Ukraine desk looked like they have things to say and they are not in the control of the administration and they may not resist testifying voluntarily. We don’t even have to go to court so that the evidence is going to pile up from voluntary sources including people like the whistleblower and that pile of evidence can be accumulated while we try to get accelerated judgments from the judiciary including the Supreme Court in cases where witnesses are under the president’s thumb and are not willing to come forward and comply with subpoenas. And in the meantime we can impeach the president so we can do three things at once. And it seems to me that’s exactly what we need to do in this existential crisis that the president has created.
S10: The other thing you said up top and I agree with you is the Supreme Court is not going to allow some of these just completely meritless self aggrandize really Twitter rants turned into legal arguments to stand.
S5: And I think I agree with that but it does raise for me this question of John Roberts who will spend the next few months Larry doing three things at once he will both be presiding over that. I think one of the biggest Supreme Court terms of my lifetime which we will talk about you and I on another show too. He will be presiding over an impeachment trial in the Senate and three he will be as you just pointed out in these ancillary cases if not on the merits itself really overseeing some of these massive massive legal questions about the president and his powers.
S7: Does that whatever you know about John Roberts and I know you you know him does that amount of pressure on the judicial branch and particularly on the Supreme Court in a moment when other institutions are rationally I think striving to stand up to their obligation to be guardrails. Is that too much pressure on the Supreme Court to become the arbiter of all the things.
S11: Well that’s a great great question. I certainly know nothing that I confronted John Roberts with when he was my student in constitutional law approximates this even though I’m a pretty tough teacher nothing approximates this. But keep in mind that his role with respect to presiding over the impeachment trial in the Senate is largely ceremonial. It’s really not a role that is terribly substantive. The Senate as a whole can overrule him on particular points of order on motions about evidence. That’s a largely ceremonial role. And I think he’s perfectly capable of carrying that out in a distinguished and orderly and and an impressive fashion while presiding on what you rightly say is the most important Supreme Court term in a very long time on issues of LGBT few rights and on issues of gun rights and on ultimately perhaps also issues of executive power. I don’t see any reason why he can’t do all three. And in fact the overriding need for the court to reassert its independence and its and its role as a not entirely political institution I think will lead even the most conservative judges even ones appointed by Donald Trump even judges like Kavanaugh and of such to step up to the plate and not simply act as as partisan actors. I think it’s likely that on some of these most extravagant claims by the president the court will be unanimous in rejecting them.
S10: Larry those are all my immediate burning technical questions but now I want to give you a chance to step back and let’s hear the big existential ones. How to think about this era defining moment. What is top of mind what is your organizing theory of things to prioritize as we go through thinking about Congress as having all these latent inherent powers to do truly life changing things into Congress is now doing those things how do we frame what needs to happen next and what we need to do to get to what happens next just in order to organize our minds going forward.
S9: Well I guess what we do is try to step back and ask what is the country that we have inherited and what are the best parts of it that we would like to preserve. I mean we need to preserve a system where there is no one person who is sort of the boss of all of us where we can govern ourselves and we need to say that whether we are Republicans or Democrats whether we are conservatives or liberals if we want to preserve a republic and if we want to preserve the rule of law as more than just a slogan then we have to go back to first principles and ask What is it that the people who designed the system were trying to do with something like the impeachment power. And if you look at what they were doing overwhelmingly it was about the fact that we might someday despite what they thought would be the break that would be imposed on improvident choices by the Electoral College which hasn’t quite worked out as they as they hoped we might someday put in power a demagogue who is in league with foreign influence and who is ready to sell out the country for his own or her own although they probably didn’t envision her as a possibility his or her own political and financial fortunes. And that if that happened we would need a way of cleansing the system to get rid of the malefactors get rid of the cancer in the system and start over. I think people have to realize that we are at a moment that looks just like that. And even though the people have no direct vote in what happens it is the case that those in Washington are at least sensitive to the barometer of public opinion and as public opinion moves toward a majority that favor not just an impeachment inquiry but the removal of this president. I think people have to say you know let’s register our views if that’s what we think should happen regardless of where we are on the political spectrum. Then let your Congressman know let your senators know because the system will be responsive to public pressure in the end.
S5: Laurence Tribe is the Carl M. Loeb University professor of constitutional law at Harvard. He is the co-author most recently of to end a presidency the power of impeachment. He is also in my life one of my personal constitutional sherpas and has been one of the folks who’s kept me sane the last couple of years Larry Tribe. Thank you so much for taking time to be with us. Thank you.
S13: Dahlia you have helped keep a lot of people saying so I’m really pleased to be able to talk with you this past Tuesday one of the most important LGBT rights cases of our lifetimes was argued at the Supreme Court. The issue which we actually discussed on last week’s show a little bit is whether Title 7 of the Civil Rights Act of 1964 protects LGBT workers from being terminated by their employers simply because of who they are.
S14: The law on its face bars discrimination quote because of sex but the employers of two gay men and a transgender woman all take the position that they are not being fired because of their sex and thus the law just doesn’t reach them in the first case that was heard on Tuesday morning professor Pamela Karlan of Stanford University’s Supreme Court Clinic represented two workers terminated from their jobs for being gay men. Pam welcome back to the podcast. Thanks for having me. So can we start. Just tell us about your two clients and the reasons for their termination.
S15: I want to be clear that one of them wasn’t actually my direct client. The court combined two cases together and set them for oral argument and we agreed that I would present arguments on behalf of both men. So the men that the case is going to be named after Gerald Bostock was a child welfare worker in a suburban county outside of Atlanta Clayton County and he was an award winning promoter of the castle program which is this program that gets court appointed advocates for kids in need. He had placed 100 percent of the kids he had won national recognition and then he joined a gay softball league and among other things encouraged members of the softball leaked to volunteer to be CASA advocates. And shortly thereafter the county he alleges launched an audit of his program and then fired him. And he says he was fired not because he did anything wrong but because he was gay. My client Don Zada worked at a skydiving company where they would strike people who wanted skydive to instructors and leap out of a plane with a parachute on them and the way this is done is you are basically joint pelvis to pelvis chest to back with the person that you’re diving with. And some people can be a little uncomfortable about this and so there was a lot of joking around the flights where he would say to women he was strapped. Don’t worry I’m gay and I’ve got an ex-husband at home to prove it. And a woman complained about this and he was fired from his job. Both of them brought lawsuits saying they’d been fired because of their sex. That is because they were gay men and therefore didn’t conform to an expectation about how men should behave.
S16: And we should be clear that Zada died in 2014. His estate continued this lawsuit. So he’s not no longer alive right.
S17: His sister and his former partner are the executors of his estate and they’re continuing the case on behalf of the estate.
S16: It seems to me there’s two chunks of this. One is the parade of horribles problem that we’re going to talk about later. But the initial problem is just the text of Title 7 itself because I think we can all agree that in 1964 whatever it was that Congress was doing they were not contemplating protecting gay workers or in the other case that you didn’t argue David Cole argued a transgender worker.
S18: And so then we get into this really deep fight about whether because of sex includes homosexuality. And I just want to be sort of as transparent as I can because it seems obvious to me that of course it has to be because of sex. But I just want to read this is what the government brief in this case said quote the ordinary meaning of sex is biologically male or female it does not include sexual orientation an employer who discriminates against employees in same sex relationships does not violate Title 7 as long as it treats men and same sex relationships the same as women and same sex relationships. That’s it. That’s the nub of the case right.
S15: That’s the argument that is their argument. And the problem with that argument is it ignores. Nobody is claiming that sexual orientation is the synonym for sex the way for example man and Andre might be synonyms for one another or woman and lady might be synonyms for one another. What we’re saying is that when you discriminate against someone for being gay you’re discriminating against him because he is a man who is doing something that would be perfectly acceptable if he were a woman which is being attracted to other men.
S14: You started your argument I think in fact you rendered the rooms silent when you tried to talk about what judges are forced to do if they have to make gender stereotyped arguments. I’m just going to play it.
S19: The attempt to carve out discrimination against men for being gay from Title 7 cannot be administered with either consistency or integrity in the words of the en banc 2nd Circuit. It forces judges to result resort to lexical bean counting where they count up the frequency of epithets such as fag gay queer real man and femme to determine whether or not discrimination is based on sex or sexual orientation. That attempt is futile because when a man is discriminated against for being gay he is discriminated against for not conforming to an expectation about how men should behave.
S14: So Pam you are doing two things here you’re both making your because of sex point but then you’re wrapping it around this gender stereotyping argument this price Waterhouse argument about how courts have to think about gender right. You’re doing both things.
S20: What I was trying to do there is to show that if you say as every court agrees that you can’t force people to conform to sex stereotypes that is stereotypes about how people of their sex ought to behave. But you claim at the same time that you can discriminate against them because of their sexual orientation. It’s impossible to disentangle those two things and so the quotation that I read from the Second Circuit says look if what you’re going to say is you can’t fire a woman for being too macho that’s Pricewaterhouse and you can’t fire a man for two being too effeminate which is the corollary of that. How are you going to separate out the person who calls the man you know faggot or pansy or fairy from firing him because he’s gay. It’s not that of course all gay men are effeminate or even all effeminate men are gay but it’s that you can’t separate these things out in a way that has any integrity or coherence because both sets of epithets are about someone who’s male and doesn’t conform to what we think a man ought to be. And the court has been very clear and has been clear since 1978 that you can’t force people to conform to stereotypes that are based on their sex.
S16: And the answer to that from Noel Francisco and from the employers in this case is Pam your overly complicated it. This has nothing to do with gender stereotyping it just has to do with not protecting gay workers right. They they they felt like you were muddying the waters with that analysis.
S20: Well I think they’re actually muddying the waters by talking about sexual orientation because you could talk about our clients cases without ever mentioning their sexual orientation. If you simply said this which is a man who’s attracted to men and a woman who’s attracted to men you fire the man for being attracted to men. You don’t fire the woman for being attracted to men that’s sex discrimination pure and simple in the same way that the first sex discrimination case the court ever heard a case called Phillips against Martin Marietta. They refused to hire women with small children at home but they’d hire those men and the court said look you know treating women with small children at home differently than men with small children at home violates Title 7 it’s sex discrimination. So it’s got to follow from that that firing a woman with a wife at home but not firing a man with a wife at home is sex discrimination. There’s nothing muddying the waters about that. What muddies the waters is when you try to say well you know a gay man and a lesbian are actually engaged in the same behavior because they’re not they’re engaged in very different behaviors. One group of them is attracted to women and the other group of them is attracted to men.
S14: What are the things that I found so fascinating about this argument Pam is the pin the blame on the Congress component. And this came up in a whole bunch of different ways.
S16: Justice Ginsburg started by saying to you Look let’s all be clear that this was not what Congress had in mind in 1964. She said when this was passed in many states same sex relations was a criminal offense. And the EPA had labeled it a mental illness. And then you had this great reference to Mad Men let’s play it.
S19: This court has recognized again and again forms of sex discrimination that were not in Congress’s contemplation in 1964. In 1964 those were the days of madmen. So the idea that sexual harassment would have been reached most courts didn’t find sexual harassment to be actionable until this court did.
S14: What you are being tagged for there not by Justice Ginsburg but the folks who say this wasn’t in Congress’s minds at the time is the exact thing that we’re supposed to not do anymore which is think about congressional intent. Correct.
S15: That’s right. And I took what Justice Ginsburg was doing was she was setting that point up. We don’t look at the specific problem that Congress was directed at we look at the language they use and that’s you know what Justice Scalia said in the on call case for a unanimous court were. And that was a case about same sex sexual harassment in an all male workplace on an on an oil platform.
S20: And Justice Scalia said look we’re not we’re not governed by the precise problem Congress was thinking about we’re governed by the words it wrote and the words discrimination because of sex because of such individuals sex which is the actual language are capacious enough that in their natural reading they protect men who are attracted to men in the same way that they attract women who don’t walk in a feminine manner or don’t talk in a feminine men and the other version of pin the blame on Congress was it seems to me both Chief Justice Roberts and Sam Alito were evincing massive anxiety about the court taking it upon itself to expand Title 7 in a way that would make it the dreaded super legislature.
S21: We’re not asking them to expand Title 7 at all. We’re asking them just to apply the language that’s written and not carve an exception into the statute that Congress didn’t create. Congress created a bunch of exceptions in Title 7 including with regard to sex discrimination something called the BFA Q or the bona fide occupational qualification. So Congress said look when sex actually matters to a job you can refuse to hire women or you can refuse to hire men and the leading Supreme Court case on this is a case called doctored against Rawlinson where the court said that Alabama could have a rule that you that you couldn’t guard opposite sex prisoners so men couldn’t work in certain contact positions in women in the women’s prison. And women couldn’t work in certain contact positions in the men’s prison. So when you want to have a rule that says no opposite sex contact and it’s relevant to the job you can have that rule. And so theoretically if there’s a job for which you shouldn’t have same sex contact you could have that as a rule but what you can’t do is just bar women altogether from a job or bar men altogether from jobs.
S20: And so we say apply the words as written and if Congress wants to write an exemption into Title 7 for sexual orientation discrimination as opposed to all other forms of sex stereotyping and sex discrimination Congress can do that but they haven’t done that and the court shouldn’t.
S5: And that’s the answer to the hypo you were asked about having men working with women who’d been sexually assaulted and the victims of terrible trauma. Right. That’s not what you’re asking for.
S15: Yeah. And of course that was a question in the other case. Nobody has made any arguments in the Supreme Court that a person’s sexual orientation is relevant to their ability to do any of the jobs that have that gay people have been excluded from.
S14: And I want you to talk a minute if you would Pam about it it seems as though the liberal wing of the court. There was a lot of Can’t we just confine this to when people are harmed. You made the point look you’re calling me Mrs. Carlin you’re calling my colleague on the other side Mr. Harris. There’s no harm there. But when we’re talking about firing people from their employment there is real harm in that right.
S15: And that was focusing on a different word in the statute that would discriminate. Because the Supreme Court has said in some prior cases involving Title 7 that discrimination means a real injury some kind of something more than an innocuous difference. So you know an employer who says yes ma’am to you know or two female employees. And no sir to male employees is obviously treating them differently on account of sex.
S21: That is the thing that determines whether they call you Miss or or Miss or Mister or the thing that occurred explains why they call you ma’am or sir is your sex. No one denies that. But it doesn’t inflict an injury on people to use those honorifics that are based on sex and so the court seemed absolutely obsessed with bathrooms in our brief.
S20: We point to all the pages in the government’s brief where they talk about bathrooms and the fact is right now we have separate sex bathrooms both in the circuits where sexual orientation is covered by Title 7 and in the circuits where sexual orientation is not covered and nothing about this case changes whether or not you can have seat sit single sex bathrooms.
S14: Well I did want to ask you about because I read I think Mother Jones counted 50 between your argument and David Cole’s argument 50 episodes in the transcript where the word bathroom arises and I don’t want to ask you to speculate why the obsession. But I mean I certainly know when we talk about the VRA there was also talk of of bathrooms and certainly in the public school transgender bathroom cases. There is some weird fetishizing about bathrooms that eludes me and I wonder if you got any sense from just the obsessiveness that the court lasered in on this what what is the anxiety there.
S15: I don’t really understand the anxiety there because you know as I as I said we’ve had you can’t discriminate on the basis of sex. Everybody has understood that since 1964 and yet since nineteen sixty four no one has successfully challenged the idea of single sex bathrooms. The only cases where bathrooms have come into play when we’re talking about men and women generally are cases where the facilities are not equal in some way. And so for example there’s a case that involves I think it was firefighters where the women firefighters bathroom was basically in a closet and it didn’t have a full shower while the men had you know a really comfortable place for you know comfortable locker room and the the court in that case it was a lower court said this is not fair women are being subjected to inferior terms and conditions of employment but otherwise you know sex discrimination in employment has been forbidden since 1964 and we still have single sex bathrooms so I can’t see how anything about our case win lose or draw is going to change anything about bathrooms.
S16: I want to play for one second ACLU lawyer David Cole argued for Amy Stephens in the second case and I want to talk about it for a second. But here was him making exactly the point that you just made about the existence of bathrooms for decades.
S14: Except he actually said it in his argument in reference to the bathrooms at the Supreme Court. You’re a transgender male whereas in this courtroom following the male. Dress code.
S22: And going to the men’s room and the the courts dress code and sex segregated restrooms have not fallen. So the notion that somehow this is going to be a huge upheaval we haven’t seen that upheaval for 20 years. There’s no reason to see that if people transgender people follow the rule that’s associated with their gender identity. It’s not disruptive.
S14: And I think Pam the question that I pull out of that is it does seem as though there was an immense amount of slippage between what we’re supposed to be your discrete issues and and the discrete issues involving Amy Stephens the transgender worker from Michigan who brought related but different claims in the second hour. I wonder if part of the confusion in this case is that you spent an immense amount of time answering questions that should have been directed to David Cole.
S23: Yeah I was surprised by that and a several times I tried to say look when it comes to bathrooms and sexual orientation there’s never been an issue.
S24: It’s always been the case that gay straight and bisexual men use the men’s room and lesbians bisexual women and straight women use the women’s room. So nothing about sexual orientation casts any real light on which bathroom you use.
S15: You would have thought that they didn’t know that David Cole was gonna be there in you know 45 minutes to talk about to talk about the question of bathrooms.
S13: That that was my overwhelming takeaway. Listening to your argument was that there was this visceral kind of torpor of some kind of social anxiety that didn’t go to your issues at all certainly didn’t go to questions of employment and that you know just as gorse which at some point gave voice to it. Just this idea that this is going to effectuate some sea change and it’s all just too much.
S5: And it felt like it was a way of sort of almost the sloppiness of conflating a whole bunch of issues that actually had nothing to do with your particular appeal was of a piece with the sense that it’s all just happening too fast and we can’t be responsible for it. Am I mischaracterizing you can tell me if I’m overstating that.
S25: Well I don’t think you’re overstating. I think there’s a lot that the two cases have in common they’re both cases about stereotypes based on expectations of how women should be and how men should be. So I don’t think the two issues are completely unrelated to one another. But I think that the courts.
S26: What’s interesting here is you would think and indeed the polling data kind of suggest this that there’s much broader support for nondiscrimination in employment right now today than there was for example support for marriage equality there are a lot of people and I tried to get this point across to the court that there were a lot of people who have religious objections for example to homosexuality who have no objection to hiring people who are gay or lesbian in the same way that you know lots of employers may have religious objections to other religions they may think people who don’t share their religion are going to hell but they have no trouble hiring those people to work in their in their company but part of this slippery slope here is that this isn’t cabin to employment.
S13: Presumably if Title 7 doesn’t protect LGBT workers from being fired then everything else. Housing all other forms of discrimination are back on the block right at least in states that don’t have state civil rights protections. Is
S18: that is that correct.
S25: I mean that’s true that with regard to those federal statutes that prohibit discrimination on the basis of sex but for example right now the federal public accommodations statute doesn’t prevent discrimination because of sex so it’s unlike for example the Colorado public accommodations provision that was at issue and Masterpiece Cake Shop. Right now public accommodations kick can discriminate on the basis of sex as a matter of federal law.
S16: And you’ve mentioned religion twice now and I it’s interesting we teed this case up with Erwin Chemerinsky and I said to him religion is not expressly in this case and he said it’s not but it underpins everything. And here listen to John Roberts worrying about religious exemptions for religious dissenters who don’t like the state civil rights protections several times.
S27: But twenty three states have been passing laws to address these these issues and I don’t know how many of them but I think it’s a big part of them when they do extend the coverage against descriptor discrimination on the basis of sex to sexual orientation. They also include an exemption for religious organizations. Now if we’re going to be extending the understanding of what sex encompasses and I know your argument that’s not doing it. How do we address that other concern that at least I think almost every state legislature that has extended it has felt compelled to address and then later on.
S13: Noel Francisco also made a point of worrying about religious dissenters.
S28: It would expand the scope of liability without giving any consideration to those religious liberty interests. On the other side of the balance and that is precisely why this is the type of issue that is better left to Congress and the courts.
S14: And Pam my question for you is yet again this feels like it’s Masterpiece Cake Shop in some sense because the court is showing great solicitude for religious objections. But this case it does not come up as a religion case.
S25: Well that’s correct that the two cases in front of the Supreme Court. There was no claim regarding religion at all in Gerald Bostock case in fact there couldn’t be because Gerald Bostick was employed by a public agency and public agencies don’t have the right to enforce their religious views because they’re not entitled to have religious views in the first place. Altitude express claims it doesn’t discriminate against anybody. It doesn’t claim that it has a religious objection. And there were virtually no amicus briefs on the other side saying that we have a religious objection to hiring gay men lesbians or bisexuals.
S23: So you know it’s it’s it’s this fear that there are religious objectors out there and you know for for as I tried to point out to the court. First of all 85 percent of American employers are too small to be covered by Title 7. So if you’re thinking about like a lot of mom and pop businesses if they have religious objections they’re free not to hire gay people in the same way that if they have religious objections to hiring women who want to work outside the home they don’t have to hire women. And on top of that the Supreme Court has already created what it calls the ministerial exception which is an exception for workers even in otherwise covered businesses who are spreading the religious message of their employer.
S24: So for example parochial schools or churches or the like they’re already free to discriminate on the basis of sex on the basis of people going outside the religion to complain to the government. That’s the Hosanna to Bork case. So you know they’re just it it’s a very small tail.
S29: Religious objectors wagging a very large dog here which is most of the employers and most of the employees who are actually covered by Title 7.
S13: So in a sense I guess they want to put it into that murk. I was talking about where there is some generalized anxiety that the justices are importing into this that is just not emblematic of the facts of this case or even I think as you describe the facts on the ground. It’s just something they’re concerned about and they have to keep giving voice to it. It’s must be very very frustrating to have to keep answering those questions.
S24: It is frustrating because of course you know Gerald Bostock worked for Clay County for 10 years winning national awards and praise. And then they discovered he was gay and all of a sudden they wanted to fire him. It’s not that they’re not firing him for not doing his job well as a gay man. He was doing his job well as a gay man for a decade.
S18: I have to play this exchange between you and Justice Alito only because you talk about Saturday Night Live.
S5: I haven’t checked but I’m guessing it’s one of the first references to Saturday Night Live.
S28: Is that discrimination on the basis of sex where the decision maker doesn’t even know the person’s sex and and how did they know the person’s sexual orientation.
S19: Because somebody who interviewed the candidates tells them that and they’re unable to tell anything about the person’s cells. So this is Saturday Night Live. Pat as an example right. Well I’m not familiar with. Which is the person in Peyton you can never tell whether Pat is a man or a woman.
S14: I guess my first question Pam is Can you unpack for me what he was driving at in that question.
S24: So he’s saying if you’ve got to know somebody’s sex to discriminate against them because of sex what happens if you just have an employer who says I’m not going to hire anyone who has the wrong sexual orientation.
S29: And the employer has no idea whether the person is a man or a woman.
S14: I appreciate you restating it. Still don’t understand what he was asking you.
S25: Well what he’s trying to suggest is because you could discriminate against someone on the basis of their sexual orientation without knowing their sex.
S13: So there can be a no gender.
S25: OK that must mean that sex discrimination and sexual orientation discrimination are aren’t the same thing and of course I didn’t want to be too flip at the court and I already felt like talking about Saturday night Pat was a little bit. But there’s this other famous Saturday Night Live routine that kept coming up in my mind and during the argument prep and the mood so I would sort of joke about occasionally which is you may remember the famous Gilda Radner Dan Aykroyd thing about the the white stuff in the can and it’s a it’s a floor wax. No it’s a dessert topping.
S26: OK yeah. Do you remember that. Yes. And I sort of feel that’s what we’re talking about here. Sex discrimination and in a sexual orientation discrimination and sex discrimination.
S23: It can be both simultaneously can be a dessert topping and a floor wax but of course if you didn’t know who pot was the down analogy probably also wouldn’t have been helpful.
S13: The last thing I have to have to ask you Pam is that every account I saw of the argument talked about Neal gorse being in play. I think it’s several points in the argument. He he seemed to concede. I think he conceded to David Cole quote Assume for the moment I’m with you on the textual evidence. I think he said it was very close. I think he conceded to you that he understood that there were real harms implicated in your clients losing this case in your view and I think that people say he will approach this as a textual list. What is it about textualism.
S30: Neil gorse which that makes you think he might side with you that the text is so very clear here that if you take two people who do exactly the same thing one of them’s a man one of them’s a woman and you fire one of them and not the other that’s sex discrimination.
S13: The court looks as though it never changes Pam. And yet all around you things are and we’re changing I know it’s ridiculous to be fighting a rearguard action something that we all thought was a protection but in some sense the world around the justices has changed too and I think particularly for the younger justices the world that they inhabit is very much a world that can’t tolerate this kind of discrimination.
S30: Well I think that’s right. And you know I clerked for your Bowers against hardware that was the case about whether Georgia could make sodomy a 20 year offense.
S31: And the justices went into conference there and Justice Lewis Powell said during the conference. Justice Blackman told us about this after you know I don’t think I’ve ever met a homosexual. And the difference between that in 1986 and today when not only have the justices met people but they knew that at counsel table there were gay people there were bisexuals there were people who were transgender. That’s a sea change and that sea change has got to have some effect on the court because it sees right in front of it living proof of the point that we’re trying to make in the case which is people’s sexual orientation and people’s gender identity has no bearing on whether they’re qualified to do a superb job. And that’s what Title 7 is about.
S5: And in a deep way Pam maybe this is a good place to conclude but in a deep way this is not about marriage. This is about work not every single LGBT American will marry or want to marry but almost all of them will want to work.
S7: This is really I think going to affect millions and millions and millions of people in ways that we haven’t fully thought about. I hope the justices have thought about that.
S31: Well yeah I mean you know not everybody gets married but pretty much everyone who’s an adult works.
S16: Pam Karlan is co-director of Stanford Law School Supreme Court litigation clinic where students litigate life cases before the court. One of the nation’s leading experts on voting in the political process she served as an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund and as a deputy assistant attorney general in the Civil Rights Division of the Department of Justice. Pam as always it is a pleasure to have you on and we’ll talk to you when this case is decided.
S23: Great. Thanks for having me.
S4: And that is a wrap for this episode of anarchists if you want to get in touch our email as ever is anarchists at Slate dot com. We’ve noticed a big uptick in questions around the impeachment and we’re going to try to keep answering them on the show. You can also find us at Facebook dot com slash Amicus podcast. And thank you for your feedback. Today’s show was produced by Sara Birmingham. Gabriel Roth is editorial director of Slate podcasts and June Thomas is senior managing producer of Slate podcast. We’ll be back with you with another episode in two weeks.